Scholar warns nation faces risks on election legitimacy

02/05/2019

In his keynote address opening a national symposium at The University of Akron on the Twenty-Fifth Amendment to the United States Constitution on Jan. 25, respected Washington-based political scholar Norman Ornstein warned that our existing laws governing continuity of government in a crisis are inadequate to the current reality and desperately in need of updating. Not that he expects Congress to act anytime soon.

He also predicted in response to a question from the audience that it’s “a little more likely than not” that President Donald Trump won’t serve out his term.

Ornstein, resident scholar at the American Enterprise Institute and a frequent commentator in the media, spoke to an audience of about 100 at a luncheon hosted by the Akron Press Club that preceded the symposium’s afternoon panel presentations. The interdisciplinary conference was cosponsored by the University’s Center for Constitutional Law at the School of Law and the Ray C. Bliss Institute of Applied Politics. Ornstein was introduced by David Cohen, assistant director of the Bliss Institute and a professor of political science.

Unforeseen challenges

Ornstein said that his remarks would not address the 25th Amendment, but rather “other challenges we continue to face, questions about presidential legitimacy, presidential succession” and newer challenges that could not have been contemplated in the 1960s by the framers of the 25th Amendment.

For example, “What do we do if there is an election that’s not a legitimate election… either because a foreign power puts a thumb on the scale, or because of corruption at another level? We don’t have a do-over provision in the Constitution,” he said.

“We need to think about this, because the possibility of interference in our elections is greater than it’s [ever] been. And it’s not just about building greater election security.”

Imagine if we had a cyberattack that disrupted a presidential election, Ornstein said. Or a Category 4 or Category 5 hurricane in multiple states right before the presidential election. We have no way to deal with it. You might have a situation where no candidate gets a majority of the electoral votes and the outcome has to be determined by the House of Representatives.

An even worse 9/11

To reinforce his point that these scenarios are not far-fetched, Ornstein reminded the audience about something that nearly happened on Sept. 11, 2001.

Ornstein said he was on the jetway ready to take off from Dulles Airport in the Washington D.C., area that morning when the plane was pulled back. It was two gates down from where the plane that would hit the Pentagon had taken off earlier that morning.

“That afternoon…I had kind of epiphany,” he said. “I knew, when we saw what happened to United Flight 93 that crashed in Pennsylvania, that if that plane had not taken off 45 minutes late from Newark, the passengers on board would not have known they were on a suicide mission. And I believe firmly that plane was headed for the Capitol building.”

If the plane had crashed into the Capitol, he said, “It is very possible that a majority of the members of the House would be dead or missing. The Constitution says that a quorum requires half the members. We wouldn’t have had a Congress. And the only way to replace members of the House is by special election, and special elections take on average four to five months.”

Moreover, he said, “That morning the Supreme Court building, a stone’s throw from the Capitol, was having a meeting of the Judicial Conference of the United States. The core of the American federal judiciary — Supreme Court justices, appeals court justices, and so on — were there, in a place where debris from that kind of attack could have devastated things as well.”

No traction

Beginning just weeks after the 9/11 attacks, Ornstein led the way in creating a blue-ribbon commission to address flaws and gaps in existing laws. The commission recommended a thorough revamping of the Presidential Succession Act to bring it up to date and erase a set of unintended anomalies, along with a constitutional amendment to allow emergency interim members of Congress to be appointed until special elections could be held.

“But the reforms never got any traction in Congress,” Ornstein told the audience.

“If you look at the history of our country, we’ve had many times in the past where we’ve had enormous gaps and problems, including times when we’ve had no vice president, and no Congress around, and the possibility of chaos ensuing. It took multiple tragedies or near tragedies for the government to act and make changes to deal with some of those issues, including the assassinations of presidents.”

The lack of action is unfortunate, but understandable, he said. “It’s like why some very smart people put off writing a will. They just don’t want to think about it.”